UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4481

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
versus
LARRY KEVIN BROWN,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CR-03-21)

Submitted:

July 13, 2005

Decided:

August 9, 2005

Before WILKINSON, WILLIAMS, and SHEDD, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam

opinion.

Robert L. Flax, Richmond, Virginia, for Appellant.

Paul J.
McNulty, United States Attorney, Michael J. Elston, Assistant
United States Attorney, Matthew C. Ackley, Special Assistant United
States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM:
Following his guilty plea to possession of cocaine base
(crack)

and

possession

of

firearm

by

person

previously

convicted of a felony, Larry Kevin Brown was sentenced to 51

months imprisonment.

He then filed a number of letter motions in

the district court, which are the subject of this appeal.

For the

reasons that follow, we dismiss Browns appeal from his conviction

and sentence, and affirm the district courts orders denying his
motions to withdraw his guilty plea and to readdress his motion to
dismiss the indictment.
After he was arraigned on the federal charges, Brown
moved to dismiss the indictment, alleging that the delay between
his

indictment

and

arraignment

violated

his

Fifth

and

Sixth

Amendment rights. However, before this motion was addressed by the

district court, Brown entered his plea of guilty to the two charges
stated above.

The district court accepted his plea and thereafter

sentenced Brown to 51 months imprisonment.

Brown sent a letter to the court asking for modification
of his sentence.

The district court construed this letter as a

timely notice of appeal.

Brown promptly communicated with the

court that he did not intend this document to be a notice of appeal

and the court withdrew the notice of appeal.

One month after the

court granted his withdrawal of his notice of appeal, Brown sent

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another letter stating that he wished to withdraw the withdraw[]

of his appeal and continue on with the appeal process.
We dismiss for lack of jurisdiction Browns attempt to
appeal from his criminal judgment and conviction.

In a criminal

case, an appeal must be noted within ten days of the entry of

judgment unless the court extends the appeal period under Fed. R.
App. P. 4(b)(4).

Here, the judgment and commitment order was

entered on April 22, 2004.

Assuming that Browns letter of May 4,

2004 constituted a valid and timely notice of appeal,* Browns

letter requesting to withdraw the appeal resulted in the voluntary
dismissal of the appeal.

See Fed. R. App. P. 42(a) (allowing

voluntary dismissal of appeal on motion of appellant any time prior

to Court of Appeals docketing of appeal).

In a letter dated

June 13, 2004, Brown stated his intent and desire to continue with
his appeal.

However, this statement of Browns intent to appeal

from the criminal judgment was too late.

See Fed. R. App. P.

4(b)(1); Browder v. Dir., Dept of Corr., 434 U.S. 257, 264 (1978)
(appeal period mandatory and jurisdictional).

Thus, this court

lacks jurisdiction over Browns attempt to appeal from the judgment

and commitment order entered on April 22, 2004.
Brown also appeals from the district courts orders
denying his motion to withdraw his guilty plea and denying his

The government disputes that this letter was sufficient to

constitute a notice of appeal. Because the appeal--if properly
noted--was withdrawn, we need not resolve this issue.
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motion in which he requested that the court address his motion to

dismiss the indictment which he filed prior to entering his guilty
plea.

By failing to present any argument with respect to the

courts denial of his motion to readdress the motion to dismiss,

Brown has waived review of that order.

See Edwards v. City of

Goldboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999); Canady v. Crestar
Mortgage Corp., 109 F.3d 969, 973-74 (4th Cir. 1997).
The

only

remaining

issue

before

the

court

is

the

propriety of the district courts order denying Browns motion to

withdraw his guilty plea.

Counsel raises this issue in accordance

with Anders v. California, 386 U.S. 738, 744 (1967), asking this
court to review this portion of the appeal for any meritorious
issue.
Fed. R. Crim. P. 11(e) provides that after a defendant
has been sentenced, the district court has no authority to grant a
motion to withdraw a guilty plea.

Fed. R. Crim. P. 11(e); United

States v. Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996) (decided under
former Rule 32(e)). After sentencing, the validity of the plea may
be challenged only on direct appeal or in a collateral attack such
as a motion pursuant to 28 U.S.C. 2255 (2000).

Because the

district court lacked authority to grant the motion, we find no

abuse of discretion in the denial of Browns motion to withdraw his
plea.

See Wilson, 81 F.3d at 1305.

As required by Anders, we have

reviewed the record and have found no meritorious issues with

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respect

to

the

district

withdraw his plea.

courts

denial

of

Browns

motion

to

Therefore, we affirm the denial of the motion.

In conclusion, we affirm the district courts orders

denying

Browns

motions

to

withdraw

reinstate his motion to dismiss.

his

guilty

plea

and

to

We dismiss as untimely Browns

appeal from his Judgment and Commitment order. We further deny the
motions to relieve counsel and to substitute counsel and deny
Browns pro se motions to obtain the case file and records from his
trial attorney.

This court requires that counsel inform his

client, in writing, of his right to petition the Supreme Court of

the United States for further review.

If the client requests that

a petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for leave
to withdraw from representation.

Counsels motion must state that

a copy thereof was served on the client.

We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED IN PART;
DISMISSED IN PART

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